United States Court of Appeals
For the First Circuit
No. 04-2000
ARAMJIT SINGH,
Petitioner,
v.
ALBERTO GONZALES,*
Attorney General of the United States,
Respondent.
On Petition for Review from a Final Order of the
Board of Immigration Appeals
Before
Torruella, Selya, and Lynch, Circuit Judges.
Christopher W. Drinan and Law Office of John K. Dvorak, P.C.
on brief for petitioner.
James E. Grimes, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, Peter D.
Keisler, Assistant Attorney General, and Mary Jane Candaux, Senior
Litigation Counsel, on brief for respondent.
June 27, 2005
*
Alberto Gonzales was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the respondent.
See Fed. R. App. P. 43(c)(2).
LYNCH, Circuit Judge. Petitioner Aramjit Singh, a native
and citizen of India, seeks review of the denial of his application
for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT) and the denial of his application
for adjustment of status under 8 U.S.C. § 1255(i). The Immigration
Judge (IJ) found that he was statutorily ineligible for adjustment
of status because he was inadmissible pursuant to 8 U.S.C.
§ 1182(a)(6)(C)(i) for having made misrepresentations of material
fact. These denials were summarily affirmed by the Board of
Immigration Appeals (BIA). We affirm and deny the petition for
review.
I.
Singh entered the United States without being admitted or
paroled on October 21, 1997. On January 20, 1998, he filed an
application for asylum, withholding of removal, and relief under
the CAT. In his application, he claimed persecution on account of
his Sikh religion and his involvement with the Akali Dal Mann
Party, a Sikh political organization.
On March 12, 1998, the Immigration and Naturalization
Service1 (INS) issued a Notice to Appear to Singh alleging that he
1
On March 1, 2003, the INS ceased to exist and its principal
functions were transferred to the Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2205
(codified as amended at 6 U.S.C. § 291(a)). We refer to the agency
as the INS throughout this opinion.
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was removable from the United States under 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien who had entered the United States
without being admitted or paroled.
Immigration hearings were held in San Francisco,
California on April 6, 1998, October 15, 1999, and May 2, 2000.
Singh conceded removability, but sought asylum, withholding of
removal, and protection under the CAT. During the October 15
hearing, Singh provided testimony and documentary evidence to
corroborate his claims. Specifically, he alleged two instances in
which he was arrested and beaten by the Indian police because of
his involvement with the Akali Dal Mann Party. He also alleged
that Indian authorities continued to seek him after he left and
that he would be harmed or killed if he returned.
The IJ determined that Singh's testimony was not
credible. She then considered the documentary evidence presented
to "determine whether they raise the level of evidence such that
the respondent's burden [of proving eligibility for asylum] will be
met." After reviewing the documents, the IJ concluded that Singh
had not met his burden, and on May 2, 2000, denied his application
for all forms of relief and ordered Singh removed to India.
On May 16, 2000, Singh timely appealed to the BIA.
During the pendency of his case, Singh had moved to Massachusetts
and received an approved I-140 form filed on his behalf by the
owner of a restaurant at which Singh was allegedly a cook. On May
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8, 2002, Singh filed a motion with the BIA seeking remand of his
case to the IJ so that he could file an application for adjustment
of status under 8 U.S.C. § 1255(i). Singh also moved for a change
of venue from San Francisco to Boston. The INS did not oppose
either motion, and on July 29, 2002, the BIA granted both motions.
An immigration hearing was held in Boston on March 28,
2003, to consider Singh's application for adjustment of status.
The Boston IJ found that Singh had provided false testimony and
information both in connection with his application for asylum
before the San Francisco IJ and adjustment of status before the
Boston IJ; he was therefore inadmissible to the United States
pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). Based on this finding of
inadmissibility, the IJ denied Singh's application for adjustment
of status. See 8 U.S.C. § 1255(i) (requiring admissibility as a
prerequisite for adjustment of status relief). The Boston IJ also
reinstated the San Francisco IJ's decision denying the application
for asylum and allowed an appeal to be taken from that denial as
well as the denial of the application for adjustment of status.
Singh appealed both denials to the BIA on April 4, 2003.
On June 30, 2004, the BIA summarily affirmed both decisions without
opinion, rendering the decisions of the IJs the final agency
determinations for the purpose of appellate review. 8 C.F.R.
§ 1003.1(e)(4); see Albathani v. INS, 318 F.3d 365, 373 (1st Cir.
2003).
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II.
This petition comes to us after the passage of the REAL
ID Act of 2005, Pub. L. 109-13, 119 Stat. 731, which alters, among
other things, this court's standard of review of certain agency
determinations and the burden of proof in asylum cases. The issues
in this case do not call for application of the different standards
under the Act. In particular, the provisions dealing with the
burden of proof in asylum cases are not applicable to this case as
Singh's petition was filed prior to the effective date of the
amendments.
Petitioner argues that neither of the IJ's conclusions
(denial of asylum and denial of adjustment of status due to
inadmissibility) is supported by substantial evidence. He also
makes a denial of due process claim as to the conduct of the IJ in
both the San Francisco and Boston hearings which we dismiss as
frivolous.2
2
As to the San Francisco immigration proceedings, the
petitioner argues that he was denied due process of law because the
IJ's decision did not consider all of the relevant and probative
evidence presented at the hearings and the IJ placed undue weight
on his demeanor during the hearing. As to the Boston immigration
proceedings, he argues that the IJ was not impartial and drew "only
the most negative conclusions" about him and that the manner in
which she stated her findings -- "in a vacuum without explaining
why she discounts the documents that the petitioner submitted" --
violated due process.
Both of petitioner's challenges are completely undermined by
the record. A review of the record makes clear that the conduct of
the IJs did not violate the petitioner's due process rights; the
petitioner received a full and fair hearing.
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Application for Asylum
The burden of proof for establishing eligibility for
asylum lies with the petitioner. See Diab v. Ashcroft, 397 F.3d
35, 39 (1st Cir. 2005); 8 C.F.R. § 1208.13(a). Applicants can meet
this burden by proving past persecution or a well-founded fear of
future persecution on account of "race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b)(1). An applicant's
testimony alone, "if credible, may be sufficient to sustain the
burden of proof without corroboration," 8 C.F.R. § 1208.13(a), but
if the applicant is found not to be entirely credible,
corroborating evidence "may be used to bolster an applicant's
credibility." Diab, 397 F.3d at 39.
The San Francisco IJ determined that Singh had not met
his burden of proof based largely on her finding that his testimony
was not credible and that the corroborating documentary evidence he
offered to support his testimony conflicted with and tended to
discredit his testimony further, rather than rehabilitate it. The
petitioner disagrees and argues that the IJ's credibility finding
was not supported by substantial evidence and that he has satisfied
his burden of proof to qualify for asylum relief under 8 U.S.C.
§ 1158(b)(1).
We review factual findings and credibility determinations
made by an IJ under the deferential substantial evidence standard.
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INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Akinwande v.
Ashcroft, 380 F.3d 517, 522 (1st Cir. 2004). This means that the
IJ's determination must stand "unless any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C. §
1252(b)(4)(B); see Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123
(1st Cir. 2005). As to issues of credibility, we will give great
deference to an IJ's determinations so long as the IJ provides
"specific reasons for those determinations." Awinkwande, 380 F.3d
at 522; see Syed v. Ashcroft, 389 F.3d 248, 251 (1st Cir. 2004).
There is no basis in the record to challenge the IJ's
finding. She articulated four specific reasons why Singh's
testimony was not credible, each amply supported by the record.
These reasons included the findings that Singh tended to return to
a recitation of the story contained in his application for asylum,
that he had trouble answering specific questions which did not come
directly from facts contained in the application, that he corrected
himself on several occasions, and that his testimony was internally
inconsistent and implausible. She then independently examined the
documents in the record. Those only reconfirmed the conclusion
that little of what Singh said was credible. Indeed, the record
virtually compels the conclusion that what Singh presented was far
from the truth and the untruths were deliberate.3
3
The IJ also correctly determined that the petitioner's claims
for withholding of removal and protection under the CAT failed.
Because Singh has not satisfied the more lenient asylum standard,
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Application for Adjustment of Status4
Under 8 U.S.C. § 1255(i), certain aliens who are
physically present in the United States but have not been admitted
or paroled are eligible to file an adjustment of status application
with the Attorney General's office. Upon receipt of this
application and the applicable fee, the Attorney General may adjust
the alien's status to permanent resident alien if "(A) the alien is
eligible to receive an immigrant visa and is admissible to the
United States for permanent residence; and (B) an immigrant visa is
immediately available to the alien at the time the application is
filed." 8 U.S.C. § 1255(i)(2)(emphasis added).
he also has failed to satisfy the withholding of removal standard.
See Albathani, 318 F.3d at 372. In addition, there is no credible
allegation that it is more likely than not that he would be
tortured if he returned to India; therefore, he cannot meet his
burden for protection under the CAT. See 8 C.F.R. § 1208.16(c)(2).
The United States argues that we do not have jurisdiction to
review these claims under 8 U.S.C. § 1252(d)(i) because they were
not developed before the BIA and therefore have not been exhausted.
We disagree. Singh raised these challenges before the BIA (albeit
in a perfunctory manner) and the BIA issued a summary affirmance of
the IJ's entire opinion, including her decision regarding the
claims for withholding of removal and protection under the CAT.
4
The United States correctly does not challenge our
jurisdiction to review the denial of the application for adjustment
of status under 8 U.S.C § 1252(a)(2)(B)(i). This provision limits
judicial review of discretionary denials of adjustment of status
applications. In this case, the IJ denied Singh's application
based on a finding that he did not meet the statutory prerequisite
of admissibility. This is not a discretionary denial; it is
mandated by the statute. 8 U.S.C. § 1252 does not limit our review
over these types of denials.
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An alien, in turn, is not admissible if he "by fraud or
willfully misrepresenting a material fact, seeks to procure (or has
sought to procure or has procured) a visa, other documentation, or
admission into the United States or other benefit provided under
this chapter." Id. § 1182(a)(6)(C); see Ymeri v. Ashcroft, 387
F.3d 12, 18 (1st Cir. 2004). 8 U.S.C. § 1182(i)(1) gives the
Attorney General discretion to waive this ground of inadmissibility
in certain situations. The IJ correctly determined that Singh did
not qualify for this waiver. See Afful v. Ashcroft, 380 F.3d 1, 8
(1st Cir. 2004).
The IJ's legal conclusions as to admissibility are
reviewed de novo, giving proper deference to the BIA's
interpretation of the immigration laws. See Gailius v. INS, 147
F.3d 34, 43 (1st Cir. 1998). "[A] decision that an alien is not
eligible for admission to the United States is conclusive unless
manifestly contrary to law." 8 U.S.C. § 1252(a)(4)(C). Findings
of willful misrepresentation are reviewed under the substantial
evidence standard previously described. See Ymeri, 387 F.3d at 18.
As Singh has not been admitted into this country, he bears the
burden of proving that he is not inadmissible under 8 U.S.C. §
1182. See 8 U.S.C. § 1229a(c)(2)(A); Ymeri, 387 F.3d at 17.
During the March 28, 2003 hearing, the Boston IJ found
the following:
[Singh] provided false information at the time
he applied for asylum. He provided false
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information again to the Immigration Judge in
sworn testimony on October 15, 1999. He has
apparently, in my view, proffered once again,
documents [which] were simply tailored to his
receiving benefits here in the United States.
I believe that he has provided false
information not only in his asylum
application, but in connection with labor
certification, in connection with the I-140,
[and] in connection with his I-485 before this
court.
In a written decision she further explained her position stating,
I believe [Singh] has failed to establish
eligibility for any form of relief before this
Court insofar as I do not believe the document
that he submitted indicating that he worked as
a cook. I do not believe [his] testimony
before this Court that he has been working as
a cook here in Cambridge. I do not believe
that the respondent testified truthfully
before the Court in San Francisco.
The IJ also found that these intentional misrepresentations were
made in an effort to receive the immigration benefits of asylum and
adjustment of status in violation of 8 U.S.C. § 1182(a)(6)(C).
Petitioner argues that the Boston IJ's finding of willful
misrepresentation was not supported by substantial evidence because
the San Francisco IJ did not expressly find he made a willful
misrepresentation. Although a negative credibility finding alone
is not the equivalent of a finding of willful misrepresentation and
the one does not necessarily lead to the other, here, the Boston IJ
correctly read the San Francisco IJ's lack of credibility finding
as resting on deliberate falsification. More than that, the Boston
IJ made her own findings that petitioner had lied in connection
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with his application for adjustment of status and on his employment
certification form. We have reviewed the record and see no reason
to detail each of his numerous incidents of deceit. He lied and
did so repeatedly; that sealed his fate on admissibility. Being
inadmissible, he was not eligible for adjustment of status.
We affirm the denial of his various petitions.
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